The Judicial Committee of the Privy Council Decisions

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 26th May 1999

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Lord Slynn of Hadley

[Delivered by Lord Slynn of Hadley]

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1. On 31st July 1987 Anthony Ward was shot dead in a street at Morvant, Trinidad. The next day the three appellants were arrested and they have been in prison since then. They appeared before the magistrate on 4th August 1987 but were not committed for trial until 11th August 1988. The trial was fixed for 6th November 1991 but on that date no jury was available. The trial eventually began on 11th November 1991 and on 5th December 1991 the appellants were all convicted of murder. That was already more than four years after the incident. Two and a half years later on 15th June 1994 all the convictions were quashed by the Court of Appeal on the ground of misdirection by the trial judge in his summing up. The prosecution wished to continue the case and a retrial was ordered and subsequently fixed for 10th April 1995. Since on that day no jury was available the second trial began on 11th April 1995. On 25th April 1995 the jury concluded that they could not agree on a verdict.

2. The prosecution still insisted on continuing and the appellants appeared before the judge and jury on 19th September 1996 (some nine years one month after the incident and two and a quarter years after a retrial was ordered). An application was made on behalf of Leroy Carter (with which it seems, or at least seems likely, that the other defendants were associated) that the proceedings should be stayed on the ground that to try them for the third time after such a long delay was an abuse of the process of the court.

3. The application was refused and the trial began. On 30th September 1996 all the defendants were convicted and sentenced to death. The Court of Appeal dismissed an appeal on behalf of all three appellants on 25th September 1997. Now, almost 12 years after the incident, their Lordships are asked to set aside the convictions on the ground that it was an abuse of process to try the accused for the third time in 1996 after so many years, alternatively on the ground of serious misdirection by the judge as to the elements necessary to be established before there could be a conviction for murder. A third ground was raised that the judge failed to direct the jury as to Leroy Carter’s good character.

4. The prosecution case was that it was Steve Carter who fired the bullet which killed Ward but that the others were present and chased down the street together. They were consequently, it was said, part of a joint enterprise to kill or to do Ward serious bodily harm. On arrest the defendants agreed that they had chased after Ward on the afternoon in question because Ward had threatened them after his partner had been locked up, for which Ward held the accused responsible. Curtis Charles said that he was carrying a small cutlass and two stones, Steve Carter that he had a cutlass and Leroy Carter that he had carried a beer bottle. They heard a shot fired but it was not they who fired it.

5. At the third trial Curtis Charles said that he had been advised by counsel to remain silent (though the wrongness of that advice was later a ground of appeal); Steve and Leroy Carter gave evidence. They said that Ward had shot at them and at others in the past but that on this occasion none of them had a gun and there was no pre-arranged plan to attack Ward.

6. On the appeal following the third trial the Court of Appeal rejected the criticisms that the judge had not directed the jury as to provocation or self-defence since on the facts these did not arise. The court also rejected Curtis Charles’ contention that his conviction should be set aside on the grounds of the incompetence of his counsel. Strangely counsel for the appellants did not raise the issue that the trial judge had been wrong not to grant a stay on the ground that in all the circumstances it was not in accordance with due process to try the appellants for the third time nine years after the event. That, however, is now at the forefront of their appeals.

7. The respondent accepts that it is a common practice, though not a rule of law, for the prosecution to offer no evidence where two juries have disagreed but that here the position is different; only one jury was unable to reach a verdict. It was thus for the prosecution to decide whether the public interest in the conviction of criminals required the second retrial to go ahead subject to the discretion of the trial judge to stay the proceedings for abuse of process. Since the trial did go ahead Mr. Guthrie Q.C. submits that the only question is whether that trial was unfair. Here it was not unfair since the facts were not complicated; two of the appellants gave evidence and did not show any real difficulties in recollecting what had happened.

8. The first question is whether the appellants would be allowed to raise this issue at this stage. Whether there should be a retrial, including the question whether the time between the events alleged and the retrial is such as to make a retrial unfair or an abuse of process of the court, is a matter to be raised in the first place before the trial judge and the Court of Appeal. Their Lordships would generally be reluctant to allow the issue to be raised for the first time before them. Here, the issue was raised squarely before the judge even though it was not raised before the Court of Appeal. In the circumstances their Lordships accept that since the matter was raised before the trial judge the appellants are entitled to raise the issue before them on this appeal.

9. It is to be noted in the first place that the Constitution of Trinidad and Tobago does not expressly provide for the right to a speedy trial or a trial within a reasonable time although it does confer upon a person charged with a criminal offence the right to a fair trial. In Director of Public Prosecutions v. Tokai [1996] AC 856 however, the Board stressed that where a complaint was made of undue delay before trial the rules of the common law and the procedures of the criminal courts of Trinidad and Tobago were usually sufficient to secure the fairness of the trial since one of the powers of the judge was to stay proceedings if he felt that to allow them to continue would be unfair. If he did not stay the proceedings it was his duty to direct the jury as to any matter arising from the delay which was favourable to the defence.

In Attorney-General’s Reference (No. 1 of 1990) [1992] 1 Q.B. 630 the Court of Appeal in England stressed that a stay on the grounds of delay was to be imposed only in exceptional circumstances. Lord Lane C.J. at page 643-644 said:-

"In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution. Delay due merely to the complexity of the case or contributed to by the actions of the defendant himself should never be the foundation for a stay. … no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, the continuance of the prosecution amounts to a misuse of the process of the court."

 

In George Tan Soon Gin v. Judge Cameron [1992] 2 A.C. 205 the Board, however, indicated a broader approach. At page 225 in the speech delivered by Lord Mustill their Lordships said:-

"Naturally, the longer the delay the more likely it will be that the prosecution is at fault, and that the delay has caused prejudice to the defendant; and the less that the prosecution has to offer by explanation, the more easily can fault be inferred. But the establishment of these facts is only one step on the way to a consideration of whether, in all the circumstances, the situation created by the delay is such as to make it an unfair employment of the powers of the court any longer to hold the defendant to account. This is a question to be considered in the round, and nothing is gained by the introduction of shifting burdens of proof, which serves only to break down into formal steps what is in reality a single appreciation of what is or is not unfair."

 

In Barker v. Wingo (1972) 407 U.S. 514 the Supreme Court of the United States was concerned with a case brought under the 6th Amendment to the Constitution which entitled the accused to enjoy "the right to a speedy and public trial". The Board in Bell accepted that the principles there stated [in relation to a speedy trial] have relevance and importance "in any Constitution written or unwritten, which protects an accused from oppression by delay in criminal proceedings". The Supreme Court considered that the right to speedy trial was designed to protect three interests of the defendants namely:-

"(i) to prevent oppressive pre-trial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last … If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to record accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown." (page 532)

 

10. Whether a stay should be granted raises some questions analogous to those which arise when a decision has to be taken as to whether there should be a retrial. In Reid v. The Queen [1980] AC 343 the Board gave general guidance as to the factors which may be relevant in the exercise of the Court of Appeal’s function in deciding whether to order a retrial. Thus Lord Diplock said at page 350:-

"The seriousness or otherwise of the offence must always be a relevant factor; so may its prevalence; and where the previous trial was prolonged and complex, the expense and the length of time for which the court and jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interest of justice require that he should do so."

 

11. The importance of ensuring that, if ordered, a retrial should take place without undue delay was stressed in Bell v. Director of Public Prosecutions [1985] 1 A.C. 937 in a judgment delivered by Lord Templeman. In that case the appellant was arrested in May 1977 and after conviction the Court of Appeal in March 1979 quashed the conviction and ordered a retrial. Lord Templeman said at page 954:-

"The applicant having been arrested, detained and submitted to a defective trial and conviction had, through no fault of his own, endured two wasted years and must for the second time prepare to undergo a trial. In these circumstances there was an urgency about the retrial which did not apply to the first trial. A period of delay which might be reasonable as between arrest and trial is not necessarily reasonable between an order for retrial and the retrial itself."

 

12. The appellants in the present appeal rely on specific difficulties in relation to the evidence. Steve Carter, for example, said that he could not remember precisely where they were, whether inside or outside the house, when they first saw Ward (Record page 241) that he could not say what he planned to do with the cutlass after he ran after Ward (page 249) that he could not recall having given certain statements to a police inspector (page 250) and that he could not remember where his brother was when Steve Carter first saw Ward. Another witness (McDowald) said that he had seen three men running when he gave evidence at the trial, whereas he was recorded as having told the magistrate that he saw two men running (Record 132), a matter which he himself at the trial could not recall. There were some other occasions when the witness could not recall but they are few in relation to the evidence as a whole and indeed part of the appellants’ argument is that the very fact that this was the third time that witnesses had gone over the ground may have led to their evidence becoming "ossified".

13. In their Lordships’ view the question they have to decide is not limited to a consideration of whether specific examples of inability to remember or prejudice actually occurring during the trial have been proved. It is clear that the matter has also to be considered at the time when the trial judge was asked to stay the proceedings. In R. v. Saunders [1974] 58 Cr.App.R. 248 Lord Widgery L.C.J. said at page 255:-

"… it is not in the Court’s knowledge that it has ever before been contemplated that a retrial should take place some three and a half years after the original offence was committed. A delay of one year, perhaps two years, is not uncommon, but none of us can remember a case in which it has been though right to order a retrial after such a long period , when regard is had to the fact that this appellant has already stood his trial once, and has been in prison for a number of years and would, if a retrial is ordered, have to run the gauntlet and the hazards and prejudice of being tried yet again."

 

14. However, it would be wrong to apply conditions and practices in England in this matter to cases in Trinidad and Tobago. Their Lordships have fully in mind the powerful statement by Bernard C.J. in the Court of Appeal of Trinidad and Tobago in Krishendath Sinanan v. The State (1992) 44 W.I.R. 359 at pp. 364-5 as to the difficulties faced by the courts of Trinidad and Tobago at that time. He listed many factors - e.g. that "serious crimes of violence, including murders have been an almost everyday occurrence over the past seven years"; that the courts had been inundated over these years with many complex matters, and in criminal law with criminal appeals, with cases of the many persons on death row, with the lack of trained support staff. Their Lordships accept his view "that claims to delay cannot be looked at in vacuo but must bear relation to local conditions and circumstances and the public interest". The Board have been told that in respect of court facilities the position has now improved so that in future delays should be shorter but in respect of the period covered by these appeals those difficulties existed.

15. Even so there may come a time when the delay is so great that even having regard to the public interest in convicting the guilty it becomes an abuse of process and unacceptable for a prosecution to continue. The delay is here on any view considerable and disturbing. The appellants contend that there has been no case in the Caribbean where the delay has been so great, particularly when the charge is one of murder and when the appellants have been under sentence of death for many years, with the increased agony recognised in Pratt v. The Attorney-General for Jamaica [1994] 2 A.C. 1 which such incarceration imposes.

16. It must be stressed that the complaint here is not just on the ground of delay but also on the ground that it was quite wrong that these appellants should have been put on trial not for the second but for the third time after so many years and when one conviction had already been quashed and when one jury had been unable to agree on a verdict. It may be contrary to due process and unacceptable as a separate ground from delay that the prosecution having failed twice should continue to try to secure a conviction. In this case however both factors fall to be considered.

17. Their Lordships recognise that the trial judge has a margin of discretion in these cases and that they will not readily interfere with the exercise of this discretion. After careful consideration, however, they are satisfied that the combination of these two factors required the trial judge in this case to stay the third trial. For the prosecution to continue was wrong in principle and constituted a misuse of the criminal process.

18. If a trial is allowed to proceed after a long delay it is important that the accused should be given such assistance as is reasonably within the power of the court and the prosecution to deal with difficulties caused by the delay and that the jury should be given a sufficiently firm and clear direction as to such difficulties caused by the delay. In this case Mr. George, counsel for Curtis Charles, said that he only received instructions from the legal aid authority on 16th September 1996 for a trial due to begin on 17th September which finally began on 19th September (his affidavit, Record page 390). Mr. George asked at the beginning of the trial that it be recorded that he had not yet obtained the notes from the previous trial. The judge replied "I am not concerned with any previous trial Mr. George … I am not concerned with any notes of any previous trial. I have a trial before me. Do you have the deposition for the trial that is in progress?" Mr. George "Indeed, my Lord". The Court: "Thank you" (Record page 55).

19. It seems obvious that if counsel was to be able to ascertain discrepancies in the evidence at various stages he needed these notes or transcripts of the earlier trial. Moreover it seems to their Lordships that there is force in the appellants’ complaint that the judge’s direction to the jury on delay was not sufficient. All the judge said was:-

"Mr. Foreman, Members of the Jury, you will no doubt appreciate that you are dealing with an incident that took place almost nine years ago, 1987; nearly ten years ago. In matters of this kind, persons are likely to forget certain things. In matters of this nature, there are matters that are important. There are matters that are not important. There are matters of no consequence. How do you scale the evidence? In which compartment you place the fact, any fact in question, is a matter for your sole determination. You will determine what are the important issues in this case."

20. It seems to their Lordships that these factors added to the difficulties inherent in the delay and the justification for upholding the conviction as the prosecution contends is even further reduced.

21. The appellants second ground of appeal is that there were serious misdirections as to the requisite intent for murder. The judge, it is said suggested repeatedly said that recklessness was a sufficient mens rea to support a conviction for murder and misdirected the jury as to the meaning of implied malice. The misdirections covered both the mens rea required to be established on behalf of the principal (Steve Carter) and that required for the secondary parties (Curtis Charles and Leroy Carter). The appellants rely on a number of passages in the summing up to which brief reference can be made. The learned judge began by defining express malice as including any one of two states of mind. The first was an intention to kill or cause grievous bodily harm to another. There is no difficulty about that. He went on:-

"The second state of mind is knowledge that the act which caused death will most probably cause the death or at least serious bodily harm. So you have the first scenario where there is a clear intention to kill or to cause grievous bodily harm, that is grievous bodily harm and serious bodily harm, or doing an act with the knowledge you must have known that if you did that act, it would probably cause of the death of that person or at least cause him serious bodily harm.

 

So that if an Accused points a gun at another and is charged with the killing, one may very well say, ‘Oh I never intended to kill or cause grievous bodily harm’. Well, Mr. Foreman, that is not necessarily the end of it because it is open to you to find that a person who does such an act must have the knowledge that that type of act is a type of act which would cause death or at least cause serious bodily harm. If you find that state of mind existed, then the ingredient of express malice would have been satisfied. It is very important that either of these two states of mind must precede or exist at the time of the shooting."

 

22. He went on to ask what was the intention of accused No. 2:-

"What was his intention when he fired the shot at Anthony Ward? Did he intend to kill him or to cause serious bodily harm? If your answer to that is in the affirmative, then he would have had the necessary intent. Even if you said, no, he maybe did not intend to kill, you then ask yourself the question: He must have known that such an act would probably cause death or at least serious bodily injury. If you say, yes, he must have known that if you discharge a gun, then he had the necessary intent. And it is the same with Accused No. 3 because each Accused’s case has to be looked at separately; albeit they are jointly charged. So that is malice we have dealt with."

 

23. It seems to their Lordships that in these passages in relation to Steve Carter, the principal, the learned judge is confusing probability and foresight with intention and they are not the same thing. The learned judge should simply have told the jury that before they could convict Steve Carter they had to be sure first that he fired the shot and secondly that when he did so he intended to kill or cause serious bodily harm.

24. The learned judge it is true went on:-

"If you find at the end of the day that Accused No. 2, even if you believe the State’s case that he discharged the firearm, but he never had the intention to kill or cause serious bodily injury, not guilty."

 

25. In relation to the secondary parties it is submitted that the judge suggested, that it was enough if either death or serious injury were a probable consequence of their actions, or that their actions were deliberately cruel or that they foresaw that the act of firing a gun might cause serious injury.

 

26. The judge however did say:-

"The mental element in murder is a specific intent, the intention to kill or the intention to cause serious bodily harm. Nothing less suffices. If you find at the end of the day, Accused No. 1 had no intention to kill or cause serious bodily harm, not guilty."

 

"Accused No. 3; if you find that he did not have the intention to kill Anthony Ward or to cause Anthony Ward any serious bodily harm, he must be found not guilty of the charge of murder because the specific intent would not have been proven."

 

27. The learned judge then dealt with implied malice. He said:-

"… in many cases where no malice is expressed or openly indicated, the law will imply from a deliberate cruel act committed by one person against another, and you can imply, malice.

 

In this case, you can imply malice to Accused No. 2, if you believe the State’s case that he fired that gun at the deceased, Anthony Ward. You can imply malice against Accused No. 1, if you believe the State’s case, that he armed himself with a cutlass, pursued the deceased and at the time, Accused No. 2, to his knowledge, was armed with a revolver, you can imply malice to him. You can imply malice to Accused No. 3, if you believe the State’s case, that he pursued the deceased in company with the Accused Nos. 1 and 2, he being armed with a gun and knowing that Accused No. 2 had a gun and Accused No. 1 had a cutlass. You can imply malice."

 

28. Mr. Guthrie, on behalf the State, says that part of these directions were correct and in any case the position was clear by what the judge said at page 375 of the Record. He said as follows:-

"Now, you may only proceed to find Accused No. 1, Curtis Charles, guilty of murder if you are satisfied to the extent that you feel sure that as part of a joint enterprise, he, on the 31st of July, 1987, was agreeable, with Accused No. 2 and Accused No. 3, to pursue the deceased, Anthony Ward, with the specific intention of killing him or doing him really serious bodily injury. If you are satisfied to the extent that you feel sure about that, you would be duty-bound to return a verdict of guilty of murder.

 

If, however, you say that he did all that the State is saying he did, but he did not have the specific intention to kill or to cause grievous bodily harm, but if he had thought about it, he must have realized that being armed with a cutlass and with full knowledge that Accused Nos. 2 and 3 were carrying firearms, that in the heat of the moment or in the excitement or the tension of the occasion, bodily injury may have been caused to Anthony Ward, your verdict must be one of not guilty of murder but guilty of manslaughter.

 

You take the case of Accused No. 2 now. ... You can only convict Accused No. 2 of murder if you, first of all, reject his evidence and you are satisfied to the extent that you feel sure that as part of a joint enterprise, he, Steve Carter, joined with Accused No. 1 and Accused No. 3 knowing fully well that he was armed with a gun, Accused No. 1 a cutlass, Accused No. 3 a gun, and when they set out, they had the specific intention either of killing Anthony Ward or at least causing him serious bodily harm, and if you are satisfied to the extent that you feel sure about that, your verdict must be one of guilty of murder.

 

If you find that he was part of a joint enterprise, but although he armed himself with a gun, he did not intend to kill or cause serious bodily injury, however, you find had he given thought to it, he must have realized that pursuing a man with a gun, pointing it at him and discharging it, would at least cause him some injury, it would be open to you to find him guilty of manslaughter.

 

Mr. Foreman, I will say right away, and it is a matter entirely for you, in my view a person would be hard pressed to say when he points a gun at another and discharged it at him that he does not at least intend to cause him serious bodily injury, but it is a matter entirely for you."

 

29. In relation to accused No. 3 the judge gave the direction that the jury had to be satisfied that the three went in pursuit of Anthony Ward with a specific intention of either killing him or at least causing him serious bodily injury. If so, Leroy Carter could be guilty of murder. If however he went as part of a joint enterprise armed but had no specific intention "either to kill or cause serious bodily, that ingredient for murder would be lacking". But if he had thought about it he must have realised being armed with a gun, such a lethal weapon, and pursuing someone in the heat of the moment, the excitement, the tension, it is likely that some degree of harm would have been posed to him, then he would be entitled to the verdict of manslaughter and not murder.

30. Their Lordships consider there were here at times serious misdirections in the summing up. In the first place it seems clear that the judge was confusing knowledge with intention and certainly in the early stage the jury were not given a clear direction that in relation to accused No. 2 it was intention rather than knowledge and probability which counted. It was not made clear that the probability of injury resulting and knowledge that it might result are not necessarily the same thing as an intention that injury should or may result even if the intention may be inferred from the knowledge and the probability. The judge’s direction on this as on implied malice, it seems to their Lordships, must have been extremely difficult for the jury to follow and they agree with the criticism of Sir John Smith in Smith and Hogan Criminal Law 8th Edition at page 358 that the use of the term implied malice is likely to do nothing but confuse and does not give any real assistance to the jury.

31. In relation to accused No. 1 and accused No. 3 (the secondary parties) it seems to their Lordships that what is missing from the summing up is a clear direction that it was not enough, for Curtis Charles and Leroy Carter to be convicted as secondary parties, that they knew that Steve Carter might use a weapon or that it was foreseeable that he might use a weapon. What they should have been directed is that the jury must be satisfied that Curtis Charles and Leroy Carter knew or foresaw that Steve Carter would or might use the weapon with the intention of killing or causing grievous bodily harm and that with that knowledge or foresight of his intention they continued to take part in the joint enterprise. There really was no clear direction that the secondary parties should have known that the principal might use force with intent to kill or to cause grievous bodily harm. As to the appropriate direction Lord Hutton in Reg. v. Powell (Anthony) and English [1997] 3 WLR 959 at 978B said:-

"… it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with the intent to cause grievous bodily harm."

 

32. That is certainly sufficient but it also a necessary concomitant of the liability of the secondary party. In the same case at page 965D, Lord Steyn quoted Sir John Smith thus:-

"The accessory to murder … must have been aware, not merely that death or grievous bodily harm might be caused, but that it might be caused intentionally, by a person whom he was assisting or encouraging to commit a crime."

 

33. Their Lordships considered that the effect of these serious misdirections was not removed by the passages which were relied on by Mr. Guthrie even though the latter were correct in law. Here there was clearly a long summing up which at times put the legal test correctly, at times incorrectly, and their Lordships consider that this combination of correct and incorrect directions can only have been very confusing to the jury.

34. Had they not been satisfied that the convictions should be quashed on the first ground of appeal they would have accepted therefore that there were here misdirections which would have vitiated the conviction for murder.

35. As to the complaint that Leroy Carter’s good character was not put to the jury by the judge, their Lordships accept that this was an error but it was not one that went to the heart of the case and that if that had been the only ground for the appeal they would have been prepared to apply the proviso.

36. In the circumstances, however, their Lordships consider that since the first ground of appeal is made out it is unnecessary to elaborate their conclusions on the other two grounds of appeal. The appeals are accordingly allowed and the convictions of all the appellants are quashed.